Sen. Kelly sues Pentagon over attempts to punish him for his warnings about illegal orders
The former Navy captain says his censure by Defense Secretary Pete Hegseth is "unlawful and unconstitutional."
WASHINGTON — Sen. Mark Kelly filed a lawsuit Monday seeking to reverse Defense Secretary Pete Hegseth’s letter of censure and effort to potentially demote the retired Navy officer — sharply escalating a confrontation between the Arizona Democrat and President Donald Trump’s Pentagon chief over a controversial video reminding U.S. service members they can refuse illegal orders.
In the lawsuit filed in federal court in D.C., Kelly’s lawyers argued that the Pentagon’s inquiry, and formal reprimand, unlawfully punished the senator for his speech and violated his due process.
“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” the lawsuit states.
The Pentagon did not immediately respond to a request for comment.
Last week, Hegseth sent a letter of censure to Kelly, criticizing what he called the senator’s “reckless misconduct” for joining five other Democratic lawmakers who had served in the U.S. military or intelligence community in filming a video that reminded service members of their duty to disobey illegal orders.
The lawmakers have said they filmed the video in response to some of the Trump administration’s legally controversial uses of the military, such as attacking alleged drug trafficking boats in Latin America and deploying troops to major American cities.
Hegseth also said the Pentagon was opening a proceeding into whether Kelly’s last military rank and his pension should be reduced.
The administrative punishment fell short of the Pentagon’s most aggressive option: recalling Kelly to active duty and charging him under the Uniform Code of Military Justice. But Hegseth’s letter warned that criminal charges were possible if Kelly continued to “engage in conduct prejudicial to good order and discipline.”
The FBI also is involved in the matter.
Democrats, some Republicans, and many legal experts have criticized the inquiry as a specious attack on an outspoken critic of the Trump administration, who also oversees the Pentagon as a member of the Senate Armed Services Committee.
In a statement Monday, Kelly said Hegseth’s actions would saddle other veterans with the “constant threat that they could be deprived of their rank and pay years or even decades after they leave the military just because he or another Secretary of Defense doesn’t like what they’ve said.”
Kelly retired from the military in 2011 after serving 24 years on active duty. His career included flying fighter jets over Iraq during the Persian Gulf War and becoming an astronaut. He left the Navy several months after his wife, then-Rep. Gabrielle Giffords (D., Ariz.), was shot in the head during a constituent event and survived.
The lawsuit filed Monday notes that Trump — and later Hegseth — publicly labeled Kelly’s remarks “seditious” even as the defense secretary directed a board of military officers to independently determine whether Kelly should face a reduction in rank. The public comments essentially denied Kelly any chance for fair treatment and due process, the lawyers argued.
More importantly, they said in the filing, the Pentagon’s unprecedented disciplinary action would undermine an equal branch of government — where criticism from the political party out of power is essential to how American democracy functions.
Kelly, as a retired service member drawing a military pension, has been Hegseth’s top target in response to the video, organized by Sen. Elissa Slotkin (Mich.), a former CIA analyst and political appointee in the Obama administration.
The video also featured Reps. Jason Crow (Colo.), a former Army Ranger; Chrissy Houlahan (Pa.), a former Air Force officer; Chris Deluzio (Pa.), a former Navy officer; and Maggie Goodlander (N.H.), a Navy veteran. Goodlander is married to Jake Sullivan, the White House national security adviser under President Joe Biden.
Eugene Fidell, a senior research scholar and military law expert at Yale Law School, said that Trump’s and Hegseth’s statements made it almost impossible for Kelly to get a fair review by other military officers, and he expected Kelly would prevail in the case.
“The president is already on record calling Sen. Kelly a traitor; Secretary Hegseth has already shown he has prejudged this matter,” Fidell said. “I expect this will move quickly.”